Hines v. Milosivich

McCOMB, J.

From a judgment in favor of plaintiff after trial before the court without a jury in an action to recover damages alleged to have been caused by the negligence of defendant in failing to provide proper barriers around an excavation, defendant appeals.

The evidence being viewed in the light most favorable to plaintiff (respondent), the essential facts are;

Defendant, a sewer contractor, made an excavation approximately 120 feet long and 18 inches wide, varying in depth from 10 inches to 7 feet, from a house to the center of Nichols Street in Bellflower, California.' The excavation was not open the entire distance, but was constructed with an opening in the middle of the street to which was a tunnel for a short distance, then a second opening, thence a tunnel to the street sufficient in length to accommodate automobile traffic, then open the remaining distance to the house. The dirt removed from the excavation was piled along the sides and around the openings. A county ordinance required defendant to maintain barriers not less than 3 feet high at each end of the excavation. This defendant did not do.

On October 3, 1943, plaintiff, a boy eight years of age, while engaged in a clod battle with some of his playmates, observed his father driving his car and heard him honk his horn for him to come home. This plaintiff started to do, and while watching the boys with whom he had been playing, and while walking backward fell into the excavation made by defendant and suffered a fractured leg. It is conceded that plaintiff had been warned by his mother to keep away from the excavation and also that defendant had warned the boy to stay away from it.

There are two questions necessary for us to determine which will be stated and answered hereunder seriatim:

[522]

First:

Was defendant’s negligence the proximate cause of plaintiff’s injury?

This question must be answered in the affirmative. Negligence is a question of fact for the determination of the trier of fact whose finding supported by substantial evidence will not be disturbed by an appellate court.

(McWane